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Thursday, September 3, 2015

Despite its imperfections, the document was a significant attempt to balance the rights, privileges and legitimate expectations of every community.

DOES our Constitution divide us or does it provide workable arrangements for our multi-hued nation to live together in peace and harmony? At a Round Table Discussion organised by the Institut Kajian Etnik of Universiti Kebangsaan Malaysia on Sept 1, this was one of the gripping issues.

I submitted that all Constitutions are imperfect documents. They have to mirror existentialist realities while also cradling a lofty vision of the future. The Malayan Constitution was no exception. Despite its imperfections, it was a significant attempt to balance the rights, privileges and legitimate expectations of every community.

The “Malay provisions”: In recognition of the fact that Malaya was historically the land of the Malays, the Merdeka Constitution incorporated a number of features indigenous to the Malay archipelago.

These include the Malay Sultanate; Islam as the religion of the Federation; syariah laws and syariah courts; a “special position” for the Malays and (in 1963) the natives of Sabah and Sarawak; Malay reserve lands; Bahasa Melayu as the official language; protection for customary laws of the Malays and (since 1963) the natives of Sabah and Sarawak; weightage for rural areas (which are predominantly Malay) in the drawing up of electoral boundaries; and legal restrictions on preaching of any faith to Muslims.

Safeguards for other communities: Despite many indigenous features, the Malay-Muslim provisions are balanced by others suitable for a multi-racial and multi-religious society. Citizenship rights were granted on a non-ethnic and non-religious basis. The electoral process permits all communities an equal right to vote and to seek elective office.

Fundamental rights are generally available to all. Membership of the judiciary, the Cabinet, Parliament, the public services and the special commissions is open to all. Education is universal and is free at the primary and secondary levels.

The spirit of give and take between the races, regions and religions is especially applicable in relation to Sabah and Sarawak. Even where the law confers special rights on the Malays and the natives of Sabah and Sarawak, there is concomitant protection for the interests of other communities.

For example, though Islam is the religion of the Federation, the syariah does not override the Constitution. It does not apply to non-Muslims.

All religious communities are allowed to profess and practise their faiths in peace and harmony. Every religious group has the right to establish and maintain religious institutions for the education of its children.

Though Bahasa Melayu is the national language for all official purposes, there is protection for the formal study in all schools of other languages, if 15 or more pupils so desire.

Though Article 89 reserves some lands for Malays, it is also provided that no non-Malay land shall be appropriated for Malay reserves and that if any land is reserved for Malay reservations, an equivalent amount of land shall be opened up for non-Malays.

Article 153 on the special position of Malays and natives is hedged in by limitations.

First, along with his duty to protect the Malays and the natives, the King is also enjoined to safeguard the legitimate interests of other communities. Second, the special position of the Malays applies only in the public sector. Third it applies only in four prescribed sectors and services.

Fourth, in the operation of Article 153, no non-Malay or his heir should be deprived of what he already has. Fifth, no business or profession can be exclusively assigned to any race. No ethnic monopoly is permitted.

Sixth, Article 153 does not override Article 136. Quotas and reservations are permitted at entry point but once a person is in the public service he should be treated equally.

Politics of accommodation: In addition to the above legal provisions, the rainbow coalition that has ruled the country for the last 58+2 years is built on an overwhelming spirit of accommodation between the races, a moderateness of spirit and an absence of the passions, zeal and ideological convictions that in other plural societies have left a heritage of bitterness.

Commercial freedoms: In the economic area, commercial opportunities have given to everyone a stake in the country. The non-Malay contribution to the building of the economic infrastructure of the country has given the country prosperity as well as stability.

Dark clouds: The delicate balance that the Constitution-makers were seeking has not been fully achieved and there has been overzealousness in the enforcement of the ethnic provisions.

A “silent re-writing” of the Constitution has taken place through administrative actions. I proposed many legal, administrative, educational and attitudinal changes to honour the spirit of our document of destiny.

Participants’ response: There were some very insightful and far-reaching comments from the floor. Three approaches could be discerned.

A number of commentators agreed that the Constitution is a workable and pragmatic charter inspired by the spirit of compromise, compassion and moderation. It should be restored to the pedestal on which it was placed when Malaya began its tryst with destiny. Its provisions should be given centrality.

Second, some scholars felt that the Constitution does not deserve any halo; that it has fallen out of tune with the times. It is ripe for review to make it more democratic and more in line with the need for accountability and separation of powers.

I agreed that no Constitution can entirely contemplate the future and that life is always larger than the law. A Law Reform Commission to review the glittering generalities of the Constitution will do the nation much good.

Third, one commentator put forward a remarkable but hardly isolated view that the Reid Commission’s membership was im­­balanced and therefore the Commission failed to take sufficient note of the historical, Malay-Muslim features of the peninsula. A secular and ideologically impure document that ignored the historical facts of this traditional land of the Malays needs re-writing.

Paucity of time did not permit a fuller discussion of each of the three profound and contentious viewpoints. But we were all satisfied with the civil manner in which disagreements were handled by the audience and by the organisers. A follow-up confabulation for reflection and recommendations will be most desirable.

Shad Faruqi is Emeritus Professor of Law at UiTM. The views expressed are entirely the writer’s own.

About Me

Born in Penang, speaks English, Malay, Hokkien & some Tamil. Managing Director and founder of zubedy (m) sdn bhd. Graduated from University Malaya and was in marketing for a multinational before setting up zubedy in 94. www.zubedy.com

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